Workplace Investigation Sins 6 and 7: Failing to Protect the Process

January 10, 2012 Leave a Comment

Jennifer Keaton is a Workplace Investigator with One Mediation.

A recent article detailed 5 “sins” of a workplace investigation.   The article details five requisite skills for interviewing individuals, but it admittedly does not provide an exhaustive account of all the deadly sins.

Adding two more sins to this article, to make a complete “Seven Deadly Sins,” must include (6) not advising employee witnesses of anti-retaliation provisions that exist and (7)  requesting that employee witnesses not discuss the investigation with other employees and to advise the investigator if someone does discuss the investigation with them (while it is pending).

Advising witnesses about retaliation protections provides some assurance that participating in the investigation will not bring some measure of hardship or retribution on them, at least not without the threat of recourse.  This step is often a critical step to establishing rapport and obtaining cooperation from a witness.

Where an investigation requires multiple days’ of interviews and credibility determinations are a concern, an investigator should take steps to assure that witnesses do not influence the information solicited by the investigator.   One means to mitigate such influence is for an investigator to request (or have an employer direct an employee) not to discuss or communicate about the interview or the investigation with other individuals, at least until the investigation is complete, and to inform the investigator of any individuals who do discuss it with them or attempt to discuss it with them.  For some witnesses, the request is a relief as they can “blame” the investigator for their disinterest in discussing the matter with other employees or individuals. This kind of gag order also is effective in promoting accountability because it lets the interviewee know that someone else may “tell on them” if they discuss the interview.

Finally, if the investigator receives any reports of discussions of the investigation or the interview, it may factor into credibility determinations of witnesses and help illuminate certain motivations.   If an accused harasser, for example, spends time telling individuals what they “should say,”  ”better say,” or even asks what the interviewee “plans to say,” this conduct could constitute witness intimidation.  It may also suggest that the accused is trying to influence the outcome of the investigation, which may demonstrate retaliatory motives or admissions of misconduct.

All told, a workplace  investigators who fail to protect the investigation process may find that the investigation is compromised or otherwise ineffective.  Good pre-planning with regard to an investigation can assist an investigator with avoiding such fatal flaws.

Workplace Investigation training is critical to an investigator providing a proper and professional investigation.  One Mediation’s Workplace Investigation Training Modules provide a deep dive into the investigative process (Module I) and experiential learning opportunity (Module II) that provide a strong foundation for investigators in these areas.  It is offered two-times per year.

Filed under ADA Accommodations, Alternative Dispute Resolution, Discrimination, Employee Benefits, Hearing Officers, HR Consulting, Human Resources, Litigation, Mediation, Neutrals, Retaliation, Risk Management, Risk Managers, Sexual Harassment, Workplace Investigations

Retaliation Claims: The Interesting Statistics

January 9, 2012 Leave a Comment

Janice Harper, an anthropologist, recently published an article that highlights several interesting statistics uncovered by the Ethics Resource Center about Whistleblower claims.

One stat of interest is the fact that 39% of whistleblowers’ initial complaints were not investigated by the employer.  That stat, when taken together with retaliatory conduct towards the whistleblower, suggests that perhaps a reason for the employer’s lack of concern and action was precisely due to the fact that it already knew the complaint was legitimate and true, but an undesirable truth.  Hence, the effort to avoid the reality and to sweep it under the rug.

The proliferation of employment laws over the past twenty years have begun to automatically come with anti-retaliation provisions in them.  Indeed, in the civil rights context, the Equal Employment Opportunity Commission’s statistics demonstrate significant increases in the filing of retaliation charges by employees.  This trend is evident in other contexts, as well.

The rise of retaliation claims has resulted in some employers taking employee complaints more seriously and taking the additional time to review them, even those they believe are entirely contrived.  The reason?   There are many, but some of the more common reasons include the attempt by employers to identify problems early and fix them before matters escalate to litigation and the attempt to create a demonstrable pattern of taking issues seriously (rather than appearing to be the broom-wielding employer that sweeps concerns under the rug).

Due to this trend, employers have begun cross training their in-house counsel, risk managers, and HR professionals to conduct proper investigations of employee concerns and complaints.  Additionally, external workplace investigators have also become more common, the recent creation of the Association of Workplace Investigators is an indicator of this growing industry.

In Georgia, employers typically turn to attorneys as external investigators into workplace complaints.  These attorneys, some of whom have joined One Mediation, are well qualified in being able to quickly respond to an employee’s concerns in an impartial and well-documented and reasoned fashion.   The use of independent workplace investigators with employee concerns and complaints has gained increasing acceptance as a justifiable business expense for a variety of reasons that go well beyond litigation concerns and extend to increased morale, retention of skilled employees, and economic growth potential.

 

 

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Employment, Employment Contracts, HR Consulting, Human Resources, Litigation, Mediation, Retaliation, Risk Management, Risk Managers, Sexual Harassment, Workplace Investigations

Workplace Investigations: When? Who? What? But, most of all: How?

January 5, 2012 1 Comment

Lorene Schaefer, Esq., Workplace Investigator in Atlanta, Georgia

Employees have exerted leverage upon employers to “take note” when they raise concerns about discrimination, harassment, retaliation and more.

Recently, the Association of Workplace Investigators was established – an entity that began as a California-focused entity that quickly became a national organization.   What’s the rush?  Employers are finding that it is not only a good practice to review personnel complaints for morale purposes, but also as a means to potentially reduce liability risks (whether with regard to the complaint at hand or to demonstrate a pattern of taking employee complaints seriously).

Articles abound on when to conduct an internal investigation, who should conduct an internal investigation, what should be investigated, but these articles invariably note that a critical factor of HOW these investigations are conducted is often overlooked.  Many workplaces do not have an employee who has the skills or know-how to conduct a proper investigation.  Due to this fact, many employers looked to lawyers or Private Investigators to conduct them.  Later, HR consultants also marketed investigative services.  Generally, it was happenstance as to who could or should conduct an internal workplace investigation.

With states beginning to regulate this “industry” or workplace investigators and the establishment of professional organizations to help enhance the skills, knowledge, and standards of these services, employers arguably have greater guidance in ensuring that they respond well to employee complaints.  However, employers should also be exploring who within their organizations would benefit from greater training in order to conduct a workplace investigation.  Not only does the Association of Workplace Investigators provide training, but other entities such as SHRM and One Mediation, provide workplace investigation training.

Risk Managers, HR professionals, attorneys and security professionals whose practices address workplace matters should add this training to their resume not only to enhance their credentials, but to ensure that their services reflect the industry standards that are being established.

 

 

Filed under ADA Accommodations, Alternative Dispute Resolution, Discrimination, HR Consulting, Human Resources, Litigation, Mediation, Mediation Coaching, Retaliation, Risk Management, Risk Managers, Sexual Harassment, Workplace Investigations

Employment Lawsuits: When they are bad, they are really bad.

January 3, 2012 Leave a Comment

Employment lawsuits often involve matters such as pay and wrongful terminations.   But some suits are much more compelling than others…even making the Headlines.  Case in point:  Skechers.

Employers sometimes learn the hard way that personalizing a termination can create a slew of bad press and viable legal claims.  What attorney would not want the case where the big-bad-employer appears to pick on the employee even after it’s kicked the employee to the curb?   Those “insult-to-injury” claims are the cases that can really tick off a jury!

With Skechers, the allegations appear to be that it terminated a marketing executive for “allowing” a recently departed employee purchase Skecher shoes with an “employee discount.”   The sin appears to be that the former exec either knew about the post-employment purchase or should have known about it.  As a result, the exec received her pink slip.

One can only imagine what a true audit on the usage of the employee discount would demonstrate…

In any event, the “insult to injury” was that when the exec landed a new job, her reference at Skechers threw her under the bus.  The new job evaporated.

While Skechers may have told the new employer the truth, the whole truth and nothing but the truth, holding its tongue arguably would have been a far more prudent path.  Indeed, many employers have policies that forbid the provision of references or any other information beyond “dates of employment and last job title.”   The reason:  less liability risk.

With the expansion of whistleblower protections, employers must either train its employees on the ramifications of providing opinion-based statements that could be later used as evidence of retaliation by even a former employee.  Some of these anti-retaliation provisions in workplace laws are not only permitting liability to accrue against the employer, but also are permitting individual liability against the “speaker.”

Silence, often, is golden.

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Discrimination, Employment, Employment Contracts, Human Resources, Litigation, Mediation, Mediation Coaching, Neutrals, Retaliation, Sexual Harassment, Workplace Investigations

Investigations in the Face of Whistleblower and Retaliation Concerns

December 14, 2011 Leave a Comment

Laws are proliferating that specifically forbid retaliation against employees who raise certain workplace concerns (often in certain ways) to their employers.   Perhaps these protections are overdue in some instances, but legislators are more often than not recognizing that employers can chill the willingness of employees, the very people who would know, to raise concerns about how a business is run, how individuals perform their duties, etc.  to the employer itself or even to an enforcement agency.

In this climate, employers are starting to look for proactive and “early detection” processes to solve problems before they arise.  However, even in encouraging employees to speak up, employers still hold concerns about being accused of retaliation by the complaining or reporting employee.

In some instances, these competing interests of wanting to nip problems in the bud while also trying to minimize the likelihood of a retaliation claim, employers are turning more to external investigators.   When an employer does utilize an external investigator, there is a stronger likelihood that the process will be viewed as being fair (though it may be imperfect), that the information uncovered and the conclusions reached were impartial, and that concerns about retaliation should decrease.

Employers and legal counsel should be aware of anti-retaliation provisions that affect the employer and be prepared to call on an external investigator, such as those at One Mediation, when personnel matters are raised.  Getting it right the first time can do wonders for morale, compliance, and long-term legal expenses related to litigation.

 

Filed under ADA Accommodations, Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Human Resources, Litigation, Mediation, Neutrals, Retaliation, Sexual Harassment, Workplace Investigations

Internal Workplace Dispute Resolution Programs

December 2, 2011 Leave a Comment

Unions and many public employers have utilized “grievance processes” for decades.  In essence, these grievance processes are an early, dispute resolution program.  However, they are predicated on an adversarial model of the employee vs. the employer.  As a result, these processes do not result in cooperation or even problem-solving, but rather on who was right.  For some, the grievance process is merely a necessary step to get to litigation rather than to get to resolution.

Litigation has its place.  However, in many cases, the parties, the lawyers, and usually every member of the jury, is able to point to missed opportunities to solve the problem or de-escalate the issue that prompted the lawsuit.   Recognizing the expense of litigation and the wisdom of conflict resolution, some employers have instituted “workplace mediation” programs, including in many segments of the federal government.

Some of these programs involve training co-workers in mediation, while others involve “in house” mediators or a panel of contract mediators.   They all, however, appear to have a common goal to facilitate discussion and problem-solving before the problem morphs into an abyss of distrust, gamesmanship, and other unproductive and unhealthy behaviors.  Often, a policy is in place that permits employees an easily accessible means to access the process, often through the human resources department.

In a workplace mediation, a third party works with the individuals to understand the problem, its business implications, and its interpersonal implications in order to assist with problem-solving and future-oriented planning.  From such discussions, the participants can often clear the air, gain a better understanding of the problems, and look into ways that will help them move forward in a reasonable manner.

Sounds good, doesn’t it?  And, it is a simple application of thousands of years of the human experience on handling conflict productively….

 

 

Filed under Alternative Dispute Resolution, Discrimination, Human Resources, Mediation, Sexual Harassment, Workplace Investigations

Workplace Investigations & Email

September 12, 2011 Leave a Comment

We’ve seen the TV shows and movies where a computer forensics expert uncovers some super secret electronic file or finds the files that “were deleted.”    Oftentimes, uncovering electronic communications that show workplace misconduct do not require such an expert, rather just a quick search of the email server.

Employers that routinely allow (or expect) employees to be available or to communicate via email should evaluate whether workplace policies are clear about the expectations on how employer-provided email is used, not only to be sure that the employer complies with all laws, but also to ensure that the availability of the email account is not abused.

Oftentimes, employees will use employer-provided email accounts for personal or for matters unrelated to work.   While a personal email here or there may not be problematic, the mass forwarding of jokes, cartoons, videos, and more can be problematic from a cost perspective, as well as a workplace management perspective.

For employers who have limited server space for email, frequent emails of jokes and more throughout segments of the workforce simply “takes up space.”   Talk to your IT department or consultant – with an election year coming up, there frequently is a spike in “editorial emails” that can cause issues or all-out problems.  Learning that there is a need for “another server” when the problem is “social not-working” can be a real dollar saver.

As a workplace management issue, emailing jokes, videos, and more is generally not professional and decreases productivity.   What is worse is that many times, these “joke” emails are ones that may only be funny based upon stereotypes of certain races, sexes, etc.   When those forms of humor are passed around a workplace, they may offend an employee, causes a decrease in morale.  Worse yet, the email is blown-up in front of a jury as evidence that the manager who sent it really does harbor racist, sexist, or other unlawful animus.   The problem is prevalent and often makes the news.

For employers with complaint policies regarding discrimination, harassment and/or retaliation, investigations of such complaints now involve review of email accounts, if not also review of other electronic records of cell phone calls, IMs, text messages, voice mail messages, and more.  Indeed, Human Resources professionals are going to these electronic records of communications even before talking to the individuals themselves.  Why?  Because what is captured in these electronic records are often much more objective measures and very indicative of feelings, beliefs, and misunderstandings than memories.

 

Filed under Alternative Dispute Resolution, Discrimination, Human Resources, Retaliation, Sexual Harassment, Workplace Investigations

“Reverse” Sexual Harassment

September 6, 2011 Leave a Comment

Hear the term “reverse sexual harassment” and most folks recognize that this phrase describes sexual harassment that is “female to male.”   However, it is still plain old “sexual harassment.”

While such reverse sexual harassment has resulted more than a few plot lines in movies, it has been viewed as situational comedy because it seems to buck the stereotype of the aggressive male in hot pursuit of the dewy female.   In the real world, it is not so funny.

The EEOC and the law do not buy into the idea that only women can be sexually harassed.  The law is far broader and prohibits harassment in the workplace that may be male to female, female to male, or same-sex/gender.  A recent example of this sort of role reversal demonstrates that Title VII protects individuals from harassment of a sexual nature in the workplace, no matter the victim’s sex (or sexual orientation).   Indeed, some legal experts suggest that employers should be even more wary of a “reverse” harassment or discrimination scenario where juries may find cause to issue greater punitive damages – in part – because what’s good for the goose, is good for the gander.

The moral of the story for employers is to take all complaints of sexual harassment or related inappropriate conduct seriously by conducting an appropriate and reasonable investigation, whether using an internal investigator or an external workplace investigator, like those at One Mediation.

 

 

Filed under Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Employment, Employment Contracts, Human Resources, Mediation, Neutrals, Sexual Harassment, Workplace Investigations

Rights in a Workplace Investigation

August 31, 2011 Leave a Comment

Employers have a legal obligation to maintain a safe working environment, a mandate that includes ensuring that interpersonal contact is not unlawfully harassing or discriminatory.  When concerns about harassment or discrimination, among other issues, arises, an employer should conduct a “workplace investigation” to determine whether a problem does in fact exist.

Attached is an interesting piece on the rights of employees during an internal workplace investigation.

Filed under Discrimination, Human Resources, Neutrals, Retaliation, Workplace Investigations

Hide and Go Seek: Finding a Competent Workplace Investigator

August 26, 2011 Leave a Comment

Where on earth can you find someone to do a proper workplace investigation when the anonymous, confidential, overly detailed, woefully under-detailed or other internal complaint arises that alleges misconduct such as harassment or discrimination?

1.   Look at your internal options.

Often employers will assign an investigation or “follow-up” on an employee complaint to a current employee.  Sometimes, this arrangement is just fine.   In other instances, it is fraught with problems straightaway.  Some red flags include:

  • The employee is investigating allegations involving an individual on a higher rung of the corporate ladder.
  • The employee has personal relationship(s) with the witnesses, etc. that may affect the apparent objectivity of the review.
  • The employee has never investigated misconduct allegations and does not have the requisite skills to do so.
  • The employee has other job duties that need to be done at the same time the investigation is to be performed.
Where these red flags are waving, it is time to explore other options for addressing the complaint (and getting to a resolution).

2.   Call your attorney.

Complaints about workplace misconduct often implicate state or federal laws.  By contacting your attorney, an employer not only is tapping an expert in the field’s knowledge, but can speak confidentially and strategically with legal counsel about the liability exposure and how to limit it before a lawsuit emerges.

Your attorney also is likely able to recommend a handful of qualified investigators who can assist you at a rate that is less than your attorney’s hourly fee.  Often, lawyers who are sole practitioners are called upon to conduct these investigations (though consult your state’s laws about the need of an investigator to hold a private investigator’s license).

Why would an attorney refer the investigation to another attorney?  Sounds counter-intuitive to the business interest, right?  In actuality, it may not be.  Investigators may be “witnesses” in litigation that arises out of the complaint.  For attorneys, most ethical rules prohibited attorneys from serving as legal counsel and a witness in the same matter.  Thus, the referral may be an effort to preserve the ability to represent the employer in later litigation (where the fees will almost always be more lucrative than in doing the investigation).

3.   Contact Human Resources consultants.

Many Human Resources consulting firms have investigation services.  Many times, these consultants are not attorneys.  Lack of a J.D. degree, however, does not mean that an experienced consultant is unaware of the applicable laws.  However, when the investigator is called to testify at trial, a jury may find it “of interest” that the investigator did not have that particular credential.

4.   Contact security and neutral services firms, such as One Mediation.

Other resources where a workplace investigator may be found include security businesses and neutral services firms.   “Security” business include those businesses that provide risk management and loss prevention services.  Often, these firms not only provide security services, but also have a bank of private investigators and even polygraphers that are well versed to review a misconduct complaint.  These firms often are more geared toward theft and embezzlement, but several do have experience with discrimination and harassment issues.

Neutral services firms typically have a bank of individuals who serve as mediators, arbitrators, and hearing (grievance) officers.  Often these individuals have significant knowledge of employment laws and also are lawyers.  Because they are contracted for a project – the investigation – their impartiality is bolstered by the lack of an ongoing relationship with the company.  In Atlanta, Georgia, for example, One Mediation is such a firm that has four attorneys who serve specifically as workplace investigators.  In this respect, employers easily can find and retain a workplace investigator when the need arises who can respond quickly.

 

Filed under Alternative Dispute Resolution, Arbitration, Discrimination, Employee Benefits, Human Resources, Mediation, Neutrals, Retaliation, Sexual Harassment, Workplace Investigations

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